Rebel without a good cause for $600,000
SOCIAL media has been such a game changer that NSW is to have a look at how the 2005 uniform defamation law is coping. But some things remain constant: humans like to be liked, like to be respected and like to be trusted. It is in our evolved genes. So we should be careful.
Whether the respect or trust is deserved is another matter. And deserved or not, humans will fight for it. Indeed, men (they were nearly all men) if insulted used to duel for honour with swords and pistols injuring or killing themselves so often that law-makers and policy-makers encouraged and then insisted that honour be settled in the courts and not the dueling field.
As the press became more popular, publication became more widespread, so the damages for loss of reputation became higher. The law became more complicated and costs went up.
Newspapers and later broadcasters staked their reputations on reliability and veracity. It meant, of course, that anyone defamed by them could argue thay had suffered great reputational loss because the publishers had urged everyone to rely on them.
As Tom Bathurst said in the defamtion action this week against broadcaster Alan Jones the damages had to be enough “to convince Mr Jones’s devoted followers, who write to him and hang on every word that he says, to convince them that his charges are baseless”.
Before the internet, Newspapers and broadcasters usually took great care to avoid defamation actions, and they still do. Editors and sub-editors were trained to spot defamation dangers.
Newspapers and broadcasters had a monopoly on the widespread publication of news and information. You needed an expensive press or broadcast licence to be in the game.
Then came the internet. It did not take much to publish material. Then came Google and it took even less. Then came social media and suddenly anyone could be a publisher to a lot of people at virtually no cost. They could also be republishers of other people’s material.
The new publishers arose around the time the 2005 defamation law was taking shape.
These new publishers have little or no understanding of defamation law. They know nothing of the old legal adage: you publish at your peril.
Rather, in Australia, they were imbued with inapplicable US concepts of freedom of speech.
The new publishers have little or no understanding that the accurate republication of someone’s defamatory material is almost the same as originating that material yourself.
The new publishers, mostly with modest means, have little or no understanding of their financial vulnerability in legal minefields where anti-mine defences are hideously expensive.
What is to be done? On one hand, free-speech proponents might well say a few things. The content of social media is so debased that no sensible person would take the slightest notice of anything they read or saw there.
Publication in social media is usually to so few people compared to the nationwide publication of traditional forms that it does not matter.
Republication of, and links to, defamatory material really does no further damage because the material is already there.
On the other hand, as we have seen in bullying cases, social media can be very destructive of personal feelings and reputation.
The main reason for this is that, though most social media audiences are quite small, the audience is selected and selective. Facebook has its Friends; Twitter its followers; Linkedin its professional networks, and so on.
It means that the publication of defamatory material, though to a small audience, is made to the very people in whose eyes the aggrieved person most treasures their reputation: their Friends, Followers and Professional networks.
Moreover, when new publishers republish defamatory on their social media accounts, they usually do so because they feel it might interest their Friends, Followers and Professional networks. So, again, the defamed person is held up to ridicule to a slightly wider audience which, however, includes the very people in whose eyes the aggrieved person most treasure their reputation – people who might otherwise might well not have seen the material.
So the damage done by the act of republication or link can be great, even if the audience is small. Moreover, the damage is greater if in republishing the publisher somehow endorses the defamatory material: “Did you see this ‘very interesting’ stuff about Bridget Jones!”
The law is slowly developing along those lines. Several Australian cases suggest that people uploading multiple bland links as references cannot be held responsible for all the content in those links, but those who add their two bob’s worth can be.
In all, the law should not allow open slather on social media. But the cumbersome and complicated law and practice inherited from the days when mass media consisted of only a print newspapers and licensed broadcasters needs a big overhaul.
The single most important change would be to drastically reduce the level of damages that plaintiffs can be awarded, unless they can prove actual economic loss.
The level of damages under existing law is absurdly high. Stripped on her economic claim on appeal this week, actor Rebel Wilson still got $600,000 plus interest. A national magazine could say what it liked about me for $600,000. But I would not loose a finger in a car or industrial accident for that.
I would happily have the local paper say I pushed someone out of the way in a photo shoot for $175,000 damages as was awarded to former MP Sophie Mirabella – an easy way to get more than two years’ average income.
Present law says defamation damages have to be commensurate with personal-injury damages but they are clearly not, especially as insurers and governments have been ganging up against the personally injured to screw down their awards.
Yes words can harm, but sticks-and-stones injuries can be worse and get less compensation. Wilson’s $600,000 is more than the family pay-out for a NSW worker’s compensation death, for example.
Once the possibility of big damages goes, the honeypot that attracts high-fee lawyers goes with it.
On this score there has been an interesting development in the past few years. Several states and territories have given their civil and administrative tribunals defamation jurisdiction. Damages are limited to around $25,000 and no costs can be awarded, so many litigants are self-represented, especially in social-media cases. Further cases get on quickly and hearings are short.
It should be the judgment of the court, not large amounts of money that count. Many plaintiffs say they are not interested in the money. They should be taken at their word. But there should be some redress. To do that more effectively, plaintiffs should be freed of the burden of high legal fees that would come with a no-cost jurisdiction and some simplification of the law.
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